What are the
remedies available in tort?
Introduction:
The law of tort is a
development of the maxim “UBI JUS UBI REMEDIUM” there is no wrong without a
remedy. A person suffering a legal injury and damage can succeed under law of
tort only if his case is covered by recognized tort.
Meaning of Remedy:
The means by which a right is enforced or by which the violation of a
right is prevented or compensated is called remedy. The means employed to
enforce a right or redress an injury.
Osborn’s Concise Law Dictionary:
The means by which the
violation of a right is prevented, redressed, or compensated.
Kinds of Remedies:
There are two main kinds
of remedies are as under:
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Self Defence
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Reception of
Goods
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Expulsion of
Trespass
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Abatement of
Nuisance
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Distress
Damage Feasant
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Injunction
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Restitution
of Specific Property
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Damages
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Contemptuous
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Nominal
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Exemplary
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Real
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Interim
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Temporary
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Mandatory
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Perpetual
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Judicial
Remedy
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Extra
Judicial Remedy
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Remedies
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Judicial Remedies/Legal Remedies/Relief/Judicial
Review:
Judicial Review is done
by the High Court and it is a process of
reviewing acts done by public authorities or a review of a court or a tribunal
decision. Such review can be done with respect to the procedural issues and in
relation to whether the decision was correct according to the law. It must
firstly be examined whether a particular decision can be subjected to judicial
review. Such a review can be done against a public body and a decision must constitute
infringement of public law rights not private law rights (contract, tort, employment) where only individuals
are involved. Only a person who has the sufficient interest in the matter can
apply for a decision to be reviewed by a judicial review.
Damages:
In law, damage is an award,
typically of money, to be
paid to a person as compensation for loss or injury.
Damage is the money compensation claimed by the injured party
and awarded by the court.
Kinds of Damages:
Damages are defined into
four categories:
Contemptuous or “Ignominious” Damages:
They are awarded where
technically a legal wrong is committed but where the circumstances disclosed
are such that the court feels that no action should have been brought. They are
awarded usually in actions of defamation. Where the court finds that the
defendant is in fault, but the plaintiffs conduct and character are such that
he does not deserve to be compensated the court, in order the vindicate the
law, grants damages but at the same time reduces them to such a small or
contemptuous amount as to indicate its disapproval of the plaintiff’s claim or
conduct. In such cases, a farthing in English law may sometimes be awarded.
Contemptuous damages are also called “Ignominious Damages”.
Nominal Damages:
Nominal damages are generally recoverable by a
plaintiff who successfully establishes that he or she has suffered an injury
caused by the wrongful conduct of a defendant, but cannot offer proof of a loss
that can be compensated. For example, an injured plaintiff who proves that a
defendant's actions caused the injury but fails to submit medical records to
show the extent of the injury may be awarded only nominal damages. The amount
awarded is generally a small, symbolic sum, such as one dollar, although in
some jurisdictions it may equal the costs of bringing the lawsuit.
Nominal damages are
awarded by the court to the plaintiff not by way of compensation but by way of
a recognition of some legal right of his which the defendant has infringed e.g.
trespass invasion of a right of easement etc.
Substantial/Real Damages:
They are a sum of money
which is awarded to the plaintiff as a fair and equitable compensation for the
injury suffered by him. They are also called “Ordinary” or “Compensatory”
damages. Such damages are awarded in a great majority of actions in tort.
Exemplary/Punitive Damages:
Punitive damages, also known as exemplary damages, may be
awarded to a plaintiff in addition to compensatory damages when a defendant's
conduct is particularly wilful, wanton, malicious, vindictive, or oppressive.
Punitive damages are awarded not as compensation, but to punish the wrongdoer
and to act as a deterrent to others who might engage in similar conduct.
The amount of punitive damages to be awarded lies within the
discretion of the Trier of fact, which must consider the nature of the
wrongdoer's behaviour, the extent of the plain-tiff's loss or injury, and the
degree to which the defendant's conduct is repugnant to a societal sense of
justice and decency. An award of punitive damages will usually not be disturbed
on the grounds that it is excessive, unless it can be shown that the jury or
judge was influenced by prejudice, bias, passion, partiality, or corruption.
Injunction (Stay):
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing specific
acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions. In some
cases, breaches of injunctions are considered serious criminal offenses that
merit arrest and possible prison sentences.
Injunction
is also divided into four categories:
1. Interim
2. Temporary
3. Perpetual
4. Mandatory
Restitution of Specific Property:
Specific restitution of
property is granted by the court where the plaintiff has been wrongfully
disposed of his land or goods by the defendant an action of specific
restitution of land or chattel lies only where the defendant is illegally in
possession of the land or chattel.
When a
person is wrongly deprived or dispossessed of his property the court may order
the wrongdoer to return or restitution the property to the real owner of the
property.
Extra Judicial Remedies:
These are remedies available outside the court premises. Here, the plaintiff
takes the law into his own lands. In the following cases, Extra-Judicial
remedies are available.
Extra judicial remedies are those which are available to injured party,
in certain cases by his own acts alone.
1.
Self
Defence:
A person can use reasonable force
to defend his body or his property against the acts of the wrongdoer. This is
called "Right of Self-Defence".
Self-defence or private defence is a countermeasure that involves defending oneself, one's property or the well-being of another from harm. The use of
the right of self-defence as a legal justification for the use of force in times of danger is available in
many jurisdictions, but the interpretation varies widely. To be acquitted of
any kind of physical harm-related crime (such as assault and battery and homicide) using the
self-defence justification, one must prove legal provocation, meaning that one must prove that he was in a position in
which not using self-defence would most likely lead to death or serious
injuries. The threat of damage or loss of property alone is not enough.
2.
Expulsion
of Trespasser:
A lawful owner or occupier of an
immovable property can use force to expel the trespassers and can re-enter into
the land. This is called "Right of Expulsion and Re-enter".
3.
Reception
of Goods:
A person wrongfully dispossessed
of movable chattels can recover immediate possession by using reasonable force.
This is called "Reception".
4.
Abetment
of Nuisance:
In the case of private and public
nuisance, the injured party can apply reasonable force to remove such nuisance.
This is called "Abatement of Nuisance".
5.
Distress Damage
Feasant:
Where one man’s sheep is
on another man’s ground without licence and spoils the corn, grass, etc. The
owner or the soil is entitled to take possession of them i.e. the beasts until
satisfaction is made to him for the injury he has sustained. The distress must
be taken at the time the damage is done and while the beasts are on the land.
Crux/Conclusion:
There
is no wrong without remedy law of torts provides two kinds of remedies which
are judicial and extra judicial remedies. Judicial remedies mean the remedies
which the victim of a tort may have by institution a suit in a court of law.
Extra judicial remedies are those remedies which are adopted by the parties
themselves for the redress of their grievances without the court of law.
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